VIJAY LAKSHMI JAIN Vs. RAMESHWAR DAYAL GUPTA

JUDGEMENT

(1.) THIS is tenant's revision application under Section 25 of the Provincial Small Causes Courts' Act arising out of S.C.C. Suit No. 17 of 1989 instituted by the Plaintiff -Respondent Rameshwar Dayal Gupta seeking the eviction of the Defendant -revisionist from a portion of premises No. 88 Sadar Bazar Road, Cantt., Mathura and for recovery of arrears of rent and damages. A brief backdrop to the short point in issue - whether the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972)(hereinafter referred to as the Act No. XIII of 1972) are applicable to the tenanted accommodation or not - is that the Defendant -revisionist was inducted as tenant in the disputed portion of the house, aforesaid, comprising three rooms and a shed in the southern portion for running a school at the rate of Rs. 800 per month w.e.f. 1.5.1985. An agreement dated 10.4.1984 was executed between the parties. The plain tiff -Respondent (hereinafter referred to as the landlord) was aggrieved on account of non -payment of rent and consequently he served a notice dated 27.8.1937 of demand and to quit on the applicant -Defendant (hereinafter referred to as the tenant') who sent a reply there to and also remitted some amount of rent through a cheque. Since after the termination of the tenancy, the tenant failed to clear all the dues and to vacate the premises, the landlord was compelled to institute S.C.C. Suit No. 17 of 1989 claiming a sum if Rs. 20,740 as arrears of rent and pendente lite and future mesne profits @ Rs. 800 per month, besides the basic relief of delivery of possession after eviction of the tenant. The suit was contested by the tenant raising the controversy with regard to the monthly amount of rent which, according to her, was Rs. 700 per month only and not Rs. 800, as claimed by the landlord. It was also pleaded that the provisions of the Act No. XIII of 1972 apply to the disputed accommodation and since she has committed no default in payment of arrears of rent as she has been depositing the same under Section 30 of the Act No. XIII of 1972 on the refusal of the landlord to receive the same, she cannot be labelled as a defaulter within the meaning of Section 20(2)(a) of the Act No. XIII of 1972. She had also taken the plea that even if it be treated that she has committed default in payment of rent, she stands relieved of the liability from eviction as she has deposited the entire amount as contemplated under Section 20(4) of the Act No. XIII of 1972. Both the parties led evidence before the trial court.

(2.) AFTER appraising the evidence on record and taking into consideration the respective submissions of learned Counsel for the parties, a finding of fact has been recorded that the provisions of the Act No. XIII of 1972 do not apply to the disputed accommodation and, therefore, on the termination of the tenancy of the tenant by a valid notice under Section 106 of the Transfer of Property Act, she is liable to be evicted. Accordingly, a decree has been passed for eviction of the tenant from the disputed accommodation and for recovery of arrears of rent and mesne profit as claimed by the landlord. It is in these circumstances that the present revision application has been preferred by the tenant by invoking the provisions of Section 25 of the Provincial Small Causes Courts' Act.

(3.) THE parties would swim or sink with the finding on the crucial question whether or not the provisions of the Act No. XIII of 1972 are applicable to the disputed accommodation. Sri Rajesh Tandon, learned senior advocate appearing on behalf of the tenant, vehemently argued that the evidence on record would itself indicate that the landlord has himself admitted that the premises are covered by the provisions of the Act No. XIII of 1972 as having been constructed in the year 1970. He founded his submission on the admission made by the landlord in P.A. Case No. 31 of 1992 filed by him against the tenant under Section 21(1)(a) of the Act No. XIII of 1972 for release of the tenanted accommodation for his personal need. In that application, a copy of which is Annexure -A3 to the revision application, the landlord has, in unambiguous terms admitted that the tenanted accommodation came into being in the year 1970. Sri Lalta Prasad Garg, who happened to be the advocate for the landlord also made a statement before the prescribed authority, a copy of whereof is Annexure -A4 to the revision application, that the provisions of the Act No. XIII of 1972 applied to the accommodation in respect of which the petition for release had been filed. The landlord -Rameshwar Dayal Gupta filed his own affidavit in the case, aforesaid, a copy of which is Annexure -5, deposing that the tenanted accommodation was built in the year 1970. The release petition was ultimately decided ex parte in favour of the landlord who was successful in dispossessing the tenant. The tenant took steps to set aside the order dated 7.11.1999 by which the tenanted accommodation was released. Consequent upon the setting aside of the order of release, the tenant was put back in possession and occupation of the tenanted premises. The landlord filed Civil Misc. Writ Petition No. 435 of 1993 which was partly allowed by order dated 8.3.1994 with the observation that the landlord shall not interfere with the possession of the tenant and in her taking the connection for water and electricity supply. Sri R.N. Bhalla, learned senior advocate for the landlord was not in a position to assail the admission with regard to the age of the tenanted accommodation made by the landlord in the release petition but took the forceful stand that the admission of the landlord in proceedings for release of the tenanted accommodation is of no relevance and consequence and the trial court unmindful of the admission of the landlord, has to decide, as a fact on the basis of the evidence available on record, as to when the premises came into existence. It was maintained that the plea of estoppel in such a matter is not attracted. To support his contention, Sri Bhalla placed reliance on the decision of this Court in Smt. Padmini Bala Rani v. District Judge, Dehradun 1983 ARC 159, in which the effect of the plea regarding non -applicability of the Act No. XIII of 1972 was thrashed out. In that case, the landlady had applied for release of certain flats. On behalf of the tenants, it was pleaded that the flats were new constructions. It was held that whether the disputed flats are new constructions within the meaning of Section 2(2) of the Act No. XIII of 1972 is a question which goes to the root of the jurisdiction of the rent control authorities and where such is the case, plea of estoppel cannot come in the way of landlady from contending that the Rent Control Authorities have no jurisdiction to pass orders in respect of the buildings which are exempt from the operation of the Act No. XIII of 1972 by virtue of Section 2(2) of the said Act. A reference was also made to the decision of this Court in Smt. Samundari Devi and Anr. v. Nand Kishore Marwa and Ors., 1987 All LJ 255, in which again the provisions of Section 2(2) of the Act No. XIII of 1972 came to be interpreted.